TTB COLA

Gluten has been all over the news these last few years. We’ll say up front, celiacs disease is no laughing matter for a ton of folks. That said, did you know that thanks to recent guidance from the FDA, a bottle of spring water can legally be labeled gluten-free? All’s fair in love and FDA-condoned labeling, we guess. Anyhow, following up on our posts earlier this week about beer-labeling regulations, we thought we’d circle back to let you know the state of gluten-free labeling. It’s pretty confusing.

TTB and FDA take a different approach to gluten, so you need to know your regulating authority: Malted Barley + Hops = TTB; No Malted Barley or No Hops = FDA.

On the other hand, TTB-regulated beer is not affected by this rule, and hasn’t yet adopted FDA’s approach. According to the governing TTB rule, you can’t use the word “gluten-free,” even if you’ve processed the product to bring gluten down to safe levels below 20ppm. So, that sets up a weird dilemma for folks like Omission/Widmer who brew with malted barley, but process their beers well below the 20ppm threshold. If they were regulated by FDA, like sorghum-based brewers are (see New Planet), they could say gluten-free. Instead, TTB makes them say something like this: “Product fermented from grains containing gluten and processed to remove gluten. The gluten content of this product cannot be verified, and this product may contain gluten.” Rolls off the tongue, right? So, as you can imagine, Omission was pretty happy when FDA introduced its new approach, and it’s likely TTB will eventually follow suit.

So, will all of this matter to most brewers? No, probably not. But, it’s worth noting that you might already be producing a beer that is within the safe gluten threshold. To point to big-box examples, reports show that Corona and Budweiser technically fall into that range. Still, unless you’re actually engaged in a process to remove gluten to safe levels, even though your gluten is within safe levels, you still can’t use those magic “gluten-free” words , under FDA’s or TTB’s standards. Whew!

This example Serving Facts statement is in a TTB-approved format that’s acceptable for a 23.5 fluidounce malt beverage can containing 12 percent alcohol by volume.

Yesterday, we walked through a bit of the history behind beer labels, covering why—for the most part—beer labels don’t need to include nutritional information like other products on the shelves. Today, in part 2 of this 3-part series, we answer a common question: just because you don’t need to include this information, can you? The answer is basically yes, but as you’d expect with any piece of regulation, the answer is basically yes…with an asterisk.

Part 2: You Can Include ABV and Nutrition Facts If You Want

Even if you don’t fall under FDA regulation, and enjoy the laxer labeling standards of the TTB, we’ve heard from a number of brewers who still want to include ABV and sometimes other caloric and nutritional content on their labels, but aren’t sure whether they legally can do it (mostly because not everyone is doing it). To address some of this confusion, TTB issued a ruling this year letting brewers know that they could volunteer nutrient content information, including calorie and carbohydrate content, in addition to ABV details.

So, whether you’re brewing up a lighter low-calorie beer, keeping things low on the gluten side, or wanting to show off (or at least disclose) your heavy-hitting ABV to consumers, TTB has definitively said that it’s okay for you to do so. And, notably, if you’ve already obtained a COLA and wish to add these kinds of facts, you don’t need to obtain another COLA—as long as you present them in one a few pre-approved formats. There are helpful examples included at the bottom of the TTB Ruling. (Also, as we’ll get into tomorrow, it goes without saying that you’ll definitely want to make sure this information is accurate.) If you don’t like the pre-approved formats and want to present them a different way, that’s okay, but you would need to obtain a new COLA. Also, keep in mind that serving sizes officially vary based on ABV, so that will affect how you present your nutritional information. You might be interested to know that a malt beverage serving size is 12 fluid ounces if it’s at or below 7%, 5 fl oz if it’s 7% to 16%, 2.5 fl oz if it’s 16% to 24%, and for the truly ambitious, it’s 1.5 fl oz for everything above 24%. Also, alcohol content should generally be provided in the ABV format, though FDA took the time to assure that you can present the number of fluid ounces of pure ethyl alcohol per serving if you really, really want to…

Ultimately, although it has some snooze-worthy moments, this recent guidance is worth a read-through to make sure what you’re saying on your labels, and also how you’re saying it, is fully compliant. Keep in mind, too, that this guidance technically applies also to your “advertisements.”

So, what’s coming down the pike? All in all, FDA issued this guidance in response to inquiries from industry members—but, sometimes, you have to be careful what you wish for, because FDA is currently working on rule-making that would require detailed Serving Facts statements on all alcohol beverage labels. For now, though, no worries; we’re not there yet. Tomorrow, we’ll wrap up this series of posts with Part 3, explaining how, even though you can legally volunteer a lot of this information, there are reasons you might think twice about doing so.

Beer labels. They definitely can be an artist’s canvas, but more often than not, they’re a prime example of federal regulatory oversight in overdrive. For those brewers who are already shipping across state lines, or thinking about it, you know you need to get a “Certificate of Label Approval” (COLA, for short) to legally do so. These come from the Alcohol and Tobacco Tax and Trade Bureau (TTB), and every beer you see in interstate commerce must have a TTB-approved label. You might recall now, though, that not every beer you see on the shelves contains ABV or Serving Fact information, but some of them do. Over the next couple of days, we’ll walk through what the deal with that is, and dispel common confusion about whether or not you must, or should, include this kind of information on your labels.

Part 1: History & Jurisdiction. TTB is not the FDA, and for brewers, that’s a good thing.

The reason beer labels typically don’t have to include that black-and-white box you see on everyday food products is because just about all beer is regulated by TTB, and not the Food and Drug Administration (FDA). FDA and consumers have actually tried, really hard, to get control over the labeling of alcoholic beverages, but TTB (formerly the Bureau of Alcohol, Tobacco, and Firearms, how’s that for tough?) has been able to hold them off because of a piece of legislation that’s been on the books since 1935 called the Federal Alcohol Administration Act. Beverage history dweebs like us could fill a college syllabus with the background of that Act and its tension with FDA authority. But, suffice it to say that it gives TTB primary control over certain alcoholic beverages, including beer.

If you only remember one thing from this series of posts, it’s that in order for your beer to fall under that Federal Alcohol Administration Act (FAA Act), putting it within TTB’s authority, you have to make sure your beer includes two ingredients: malted barley and hops. That’s because the FAA Act, back in 1935, decided that unless an alcoholic beverage contained malted barley and hops, it just wasn’t a malted beverage—sort of like a mini Reinheitsgebot. Thus, if there’s no hops or malted barley in the beverage, then TTB isn’t in charge, you don’t need a COLA, and you’d be regulated by FDA as a standard food/drink item.

For most brewers, falling under TTB jurisdiction is no problem. But, for anyone considering diving into the gluten-free market and mashing exclusively with stuff like rice or sorghum, you need to know that you’re regulated by FDA. This means that, for those beers, you’re required to comply with all of FDA’s labeling standards, and it’s why you’ll see (or should!) Nutrition Facts sections on non-barley-based beers, such as the Raspberry Ale from Colorado’s New Planet.

Tomorrow, we’ll introduce part two of this series, answering a question we often receive. That is, even if you fall under TTB authority because you use malted barley and hops, whether you are still legally allowed to include other information like an ingredients list, nutritional breakdown, calorie information, and alcohol content—and, if so, (1) what sort of format you’re allowed to display it in (for example, alcohol by volume, alcohol by weight?) and (2) the sorts of tests you’d need to back any of this information up. We’ll see you then.

First of all, big thanks to my favorite beverage law blog – BevLog – for bringing this to my attention. It appears that the often fearless Daniel Shelton, of famed beverage importer Shelton Brothers, has decided that the “queen mother of dirty words” (thanks Ralph) no longer meets the definition of “obscene or indecent.” Because if that “F – – -” word was, the TTB certainly would not approve of it.

Thanks to Danish brewer To Ol and Shelton Brothers, we are getting a sneak peak at the TTB’s new line of thinking. I am virtually certain that the TTB didn’t simply miss that word in its review – because the same word appears in 4 different submissions for the same brewery.

Personalized labels are desirable, just like this one done for my son's birth.

At least one time in your life as a brewer, you will be asked to make a beer for a friend’s event. A wedding, a graduation, an anniversary – whatever. But, your friend will want you to make a custom label.

Under the old rules, a brewer was required to request a label approval for every single variation of your beer’s labels. Not anymore. Luckily, the TTB has decided to relax its requirements and allow brewers to use already-approved personalized labels with different graphics. That means that your approval for “30 Year Old Doug” might work for “Jess and Doug’s Anniversary Ale.”

….for personalized labels, it has long been our policy to permit the holder of an approved COLA to change items such as salutations, names, and event dates on the label without applying for a new COLA. Our 2010-1 guidance did not allow certificate holders to change the artwork or graphics on personalized labels without resubmission of the labels for approval. We have reconsidered this requirement and now permit certificate holders to make changes to the graphics or artwork on a previously approved personalized label without having to apply for a new certificate of label approval.

So, if you are planning on offering personalized bottles for your customers, remember these important rules. First, you must submit a COLA application for a personalized label template. On the application (item 19 of the paper application) you must advise the TTB that you are requesting a personalized template, stating the parts of the label that may change from label to label.

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